Abstract

Footnotes (14)

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Transfer of Movables as a Legal Act

The official comments on Book VIII of the Draft Common Frame of Reference (DCFR), having stressed that the concept of “real agreement” has not been adopted, seek to demonstrate that this concept is superfluous. A “real agreement” is one in which the transferor declares that he is transferring ownership to the transferee and in which the transferee declares that he is accepting ownership. Normally this is done implicitly. “Real agreement” is thus the expression of the parties’ will that ownership should pass; it is what makes transfer a legal or juridical act. The real agreement, it is true, will normally pass ownership only if additional requirements have been met, such as a valid legal ground, delivery or a deed, but the declaration of will between the parties is always the core element of any voluntary transfer of ownership.

From the rejection of real agreement, therefore, it seems to follow that the DCFR does not regard transfer as a legal act at all but merely as a consequence of a certain factual act, namely delivery or an equivalent of delivery (or an agreement as to the time when ownership should pass) coupled with a valid legal ground. It should be stressed, however, that the comments are silent on this point, neither asserting nor denying that the transfer is a legal act. The drafters, it seems, have not realised this consequence of rejecting the real agreement.

The article discusses the arguments put forward by the drafters of the DCFR to reject the concept of “real agreement” and the soundness of these arguments.